Beruflich Dokumente
Kultur Dokumente
No. 97-4168
COUNSEL
ARGUED: Joseph John McCarthy, DELANEY, MCCARTHY,
COLTON & BOTZIN, P.C., Alexandria, Virginia, for Appellant Hill;
Gregory Bruce English, ENGLISH & SMITH, Alexandria, Virginia,
for Appellant Woodson. Leslie Bonner McClendon, Assistant United
States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF:
Helen F. Fahey, United States Attorney, Alexandria, Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
In 1996 Robert C. Woodson and David Lee Hill were indicted on
a variety of drug trafficking and conspiracy charges, and Woodson
was indicted on firearms-related charges. The district court ordered
the conspiracy charges severed, and trial proceeded on the substantive
counts. The jury convicted Woodson and Hill of a number of drug
offenses, and it also convicted Woodson of several firearms offenses.
Woodson and Hill now appeal, and we affirm.
I.
On February 27, 1992, Woodson fronted cocaine base ("crack") to
Rodney Grayson, who was 18 years old at the time and who for years
had been selling crack he obtained from Woodson. That same day, in
a consensual pat-down of Woodson, police found approximately
$4,700 in cash in his pocket. Woodson again fronted crack to Grayson
on or about March 11, 1992. On August 17, 1996, police searched a
parked GMC Yukon after discovering a fugitive who had been hiding
on the truck's rear floorboard. Woodson, who arrived on the scene
soon after the fugitive's apprehension, told police that the truck
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belonged to him. Police subsequently searched the truck and discovered $2,451 in cash, and, with the aid of a drug dog, found 21.83
grams of crack, some marijuana, and a handgun in a compartment
near the truck's console. A variety of Woodson's personal belongings
were also found in the truck, and Woodson's fingerprint was found
on the gun. Police arrested Woodson several weeks later when, during
a foot chase, Woodson threw a bag into a yard as he ran. The police
retrieved the bag and found it to contain 13.61 grams of crack.
On October 12, 1994, Hill sold crack to an undercover police officer and a cooperating informant, both of whom testified at trial. On
September 10, 1996, police seized 16.06 grams of crack from the
master bedroom of Hill's residence, along with approximately $4,100
in cash. Police also found Hill's driver's license and a pager near the
crack and found drug-dealing paraphernalia in his bathroom.
At trial a number of police officers and informants testified against
Woodson and Hill. Several of the informants testified about their illegal drug dealings with the defendants. Rodney Grayson and Leslie
Nickens, for example, testified about drug purchases they had made
from Woodson and Hill, including purchases that were not the subject
of the indictment. Detective Chester Toney testified both as a fact witness and as an expert. During direct examination, the prosecutor
asked Toney whether 21.83 grams, 13.61 grams, and 16.06 grams of
crack -- the precise amounts in question in this case -- would be
consistent with distribution. Toney responded that those quantities
were consistent with distribution rather than personal use.
The government also presented evidence that the defendants failed
to file federal income tax returns for several years. Also admitted
were the drugs and handgun seized from the truck Woodson said he
owned.
The jury convicted Woodson of two counts of distribution of crack
within 1,000 feet of a playground, 21 U.S.C. 841(a)(1), 860(a),
two counts of distribution to a minor, 21 U.S.C. 841(a)(1), 859,
two counts of possession with intent to distribute crack, 21 U.S.C.
841(a)(1), one count of carrying a firearm during and in relation to
a drug crime, 18 U.S.C. 924(c), and additional counts of possession
of a firearm and ammunition as a convicted felon, 18 U.S.C.
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testimony [must] make[ ] clear . . . that the opinion is based on knowledge of general criminal practices, rather than`some special knowledge of the defendant's mental processes.'" United States v. Smart, 98
F.3d 1379, 1388 (D.C. Cir. 1996) (quoting Lipscomb, 14 F.3d at
1243); see also United States v. Tomes, 136 F.2d 176 (D.C. Cir.
1998). Under this approach, a police expert is free to testify about
what constitutes a distribution-sized quantity of drugs. It is the job of
the jury, however, to decide whether a defendant found in possession
of a particular quantity of drugs had the intent to distribute it.
In this case neither the prosecutor in her questions nor Detective
Toney in his answers used the word "intent." Nor did the detective
claim any special knowledge of the defendants' mental states. In her
direct examination the prosecutor asked Detective Toney a series of
questions about the "indicia of drug trafficking," the "quantities of
crack [that] are normally bought and sold" on the streets, and the size
and price of a "user dose" or "hit" of crack. From the answers to these
questions alone, a jury could have inferred that the crack possessed
in this case was intended for distribution. That does not matter, the
defendants argue. They argue that the prosecutor, by asking for and
eliciting an answer that the precise amounts of crack seized in this
case were consistent with distribution, went over the line in violation
of Rule 704(b). While the question may have pushed the limits of the
rule, we believe that the question and the answer were technically
within the bounds drawn by the more cautious cases.
Still, if the prosecutor's conclusory question about the exact
amounts of crack in this case went a bit too far, the error was harmless. As we indicated above, Detective Toney testified about the
ranges of crack quantities in individual street sales. In addition, he
also testified about drug traffickers' use of beepers and cellular
phones, explained why dealers transact their business in cash, and
detailed distributors' use of baggies, razor blades, and scales. That
testimony, in combination with the other evidence about (1) the
weight of the drugs seized, (2) the cash, beeper, and paraphernalia
(baggies, razor blades, and scales) found at Hill's residence, (3) the
beeper receipt in Woodson's name, and (4) actual drug dealing by
both defendants, together provided more than ample grounds for the
jury to find the intent to distribute. See Smart , 98 F.3d at 1390 & n.15
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does not appear that the defendants themselves put in issue any claim
that they had legitimate income. As a result, the evidence of the
repeated prior bad acts (failure to file) was not relevant or "necessary
in the sense that it [was] probative of an essential claim or an element
of the offense." United States v. Queen, 132 F.3d 991, 997 (4th Cir.
1997).
In sum, the government, in its abbreviated argument, has not convinced us that the evidence of non-filing was admissible in this case.
The error in admitting this evidence was harmless, however, given the
quantity and character of the other evidence presented against the
defendants. The jury heard testimony from several persons who testified that they had bought drugs from Hill and Woodson. The jury saw
the drugs and handgun seized from the truck Woodson said was his.
Chester Toney, a detective working undercover, testified that he had
bought drugs from Hill. And the jury heard testimony about the items
found in Hill's bedroom and bathroom, items that included crack and
other indicia of drug trafficking.*
IV.
The next three issues may be dealt with in fairly short order.
Defendants argue that 21 U.S.C. 860(a), which outlaws certain drug
offenses within 1,000 feet of a public school or playground, is unconstitutional under United States v. Lopez, 514 U.S. 549 (1995). Defendants argue that 860(a) goes beyond Congress' power under the
Commerce Clause. Several of the circuits have addressed similar
claims and have found them to be without merit. See e.g., United
States v. Allen, 106 F.3d 695, 700-701 (6th Cir.), cert. denied, 117
S. Ct. 2467 (1997); United States v. Ekinci , 101 F.3d 838, 844 (2d
Cir. 1996); United States v. McKinney, 98 F.3d 974, 977-79 (7th Cir.),
cert. denied, 117 S. Ct. 1119 (1997); United States v. Orozco, 98 F.3d
105, 106-07 (3d Cir. 1996); United States v. Zorrilla, 93 F.3d 7, 8-9
(1st Cir. 1996). Furthermore, this circuit, in upholding 21 U.S.C.
841(a)(1), has held that drug trafficking is well within the post_________________________________________________________________
*We reject the defendants' other arguments for the exclusion of the
failure-to-file evidence, namely (1) that the government failed to lay a
foundation that tax returns were due and (2) that the government failed
to give adequate notice of its intent to use this evidence.
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lem could have been alleviated only if the district court had used a
clear and convincing or reasonable doubt proof standard in determining relevant conduct. It was reversible error, Hill argues, for the court
to use the preponderance of the evidence standard. We disagree. We
are bound by our precedent that relevant conduct may be proved by
a preponderance of the evidence. See United States v. Jones, 31 F.3d
1304, 1316 (4th Cir. 1994).
Hill also argues that he should have been allowed to cross-examine
the sources mentioned in an affidavit executed several weeks prior to
sentencing by Detective Timothy Kotlowski, who worked on this
case. The affidavit recounted statements by various persons about
Hill's history of distributing crack cocaine, statements that would
inform an assessment of Hill's "relevant conduct" under the Guidelines. We need not address the substance of this issue because the district court, in calculating the amount of crack Hill had sold, chiefly
relied on Hill's own statement, which he made to three police officers, about the quantity of crack he had sold.
VI.
We have considered defendants' remaining arguments and find
them to be without merit.
The convictions of Hill and Woodson are affirmed, and Hill's sentence is affirmed.
AFFIRMED
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